Wessington Springs herald. (Wessington Springs, Aurora County, Dakota [S.D.]) 1883-1891, 1887-12-30

, in prosecutions under this act ey lndiesmens
in the first instance for the State to prove that
the party charged did not have permit 70 soil
, Intoxicating liquors for tho excepted purposes.
| awe are unable to perceive anything IN these
regulations inconsistent with the constitutional
guarantee of liberty and property. me state
having authority to prohibit the manuiacSure
and sale of intoxicating liquors for other than
medical scientific, ard mechanical purposes.
we do not doubt her power to declare that any
place kept and maintained Tor the iiiegai man m
nfacture and sale Of such liquors shall be
deemed common nuisance and be aoated. ana
at the same time to provide for the indictment
no ainst the property used for forbidden purpO-
ses while the other is for the punishment OF
the offender
the act of 1885 the legislature, tindinga brewery
within the State in actual operation, without
notice, trial, or hearing, by. the mere exercise
of it's arbitrary caprice declares 1t to DC COM
mon nuisance, and then prescribes the conse-
quences which are to follow inevitably by lu-
dicial mandate required by the statute and IN
volving and permitting the exercise OF no judi
cial discussion or judgment; that, the bIewery
beng found in operation, the court i5 not to
! determine whether it is q common nuisance.
| but, under the command OF the statute, is to
find it to be one; that it is not the liquor made,
or making of it, which is thus enacted to be
common nuisance, but the place itself, includ-
| ing all the property used in keeping and MAIN
| tanning the common nuisance; that the Judge,
| having thus signed without inquiry, and it may
1 De against the 1aCC HuQ urhllSG HIS OWL
ment the edict Of the Legislature. the court is
| commanded by ta officers to take possession of
the place and shut it up; nor is all this destruc-
| ton of property, by legislative edict, to be
made US Il forfeiture consequent upon convic-
| tion of any offense, but merely because the
Legislature commands, and it is done by
court of equity without any previous conviction
| first had, or any trial known to the law.
PROSPECTIVE IN IT'S OPERATION.
This certainly is o formidable arraignment
OF the legislation of Kansas, and if it was
founded on q just Interpretation of her statutes
the Court would have no difficulty in declaring
that ,ney could not be enforced without in
But these statutes have no such scope and nre
not attended with any such results the de-
to give effect to legislative decree or 'edict,'
unless every enactment by the law-,naking
power of a State is to be so characterized
1T ia not declared that every establishment
| Is to be deemed a common nuisance because it
may have been maintained prior to the pas
sage OF the statute as place for manufacture
pective III its operations-thnt is, it docs not
put tho brand of a common nuisance upon any
place unless, after its passage, TINT place is
kept and maintained for purposes declared by
the Legislature to be injurious to the comlnun-
ity. Nor is the Court required to adiudge any
place to be common nuisance simply be-
cause it is charged by the State to be such 1t
must first ind it to be of that characteristic
is, must asc ertain in some legal mode whether
since tho statute was passed, the place in
| question has been, or 10 being, used rs
would make it n common nuisance. Equally
tenable is tho proposition that Proceeding, in
equity for the purposes indicated in the thir
teenth section OF the statute ure inconsistent
with due process of law.
PUBLIC NUIsANCEs.
In regard to public nuisances STORY says
the Jurisdiction of courts of equity seems to be
OF n very ancient date, and has been distinctly
traced back to the reign of Queen Elizabeth
The jurisdiction is applicable not only to pub
lie nuisnnces, strictly called. but also to pur-
| prestureh on public rights and property. In
case OF public nuisnnces. properly SO cnlled. al
ip1Ti tn In
offenders. But an information also lies i'll equity
to redress the grievance by way of Injunction
q Storys Ed, paragraphs s.l, 1929
THE ground of this jurisdiction in of
purpresture, as well us of public nuisances. is
the ability of courts of equity to give more
speedy, permanent, and effectual remedy than
can be had at law. In the first place, they can
interposc, when the courts of law cannot, to re-
strain and prevent such nuisances which are
those already existing. III the next place, by u
perpetual injunction, the remedy is made COM
plete through oil time, whereas an information
| or Indictment ut the common law can only dis
pose of the present nuisance, and for future acts
new prosecutions must be brought In the next
place, a court of equity may be prompt and inn
mediate before irreparable mischief is done.
whereas at law nothing can be done except
after trial and upon the award of Judgment.
In the next place, court OF equity will not only
interfere upon the Information OF the Attorney
General, but also upon the application of private
parties directly affected by the nuisance;
whereas ut law, in many cases. the remedy is,
or may be, solely through the nstrnmentnlity
of the Attorney General" @ storys Ed, ga,
JURISDICTION COURTS
In Eden on 1njuncrions tWaterman's Ed,
vol. 2. p. 259, ct seq, the editor says that the
jurisdiction of courts of equity i'll cases OF Dur-
pressure and nuisances, though not frequently
exercised, is undoubted. 1t is founded il the
right to restrain the exercise the erection of
that from which irreparable damage to ndivid-
uals or great public injury would ensue. Attor-
CHI, l39; District Attorney VS.. Lynn and Boston
Railroad Company, IL Gray, 2i5: Attorney Gen
state VS.. Mayor q Co., 5 Porter Ala, ,279 29l;
Hoole, etc, vs.. Attorney General, % Ala, 1914;
Attorney General vs.. Hunter, dev. eq., 49, At
torney General vs.. Forbes, Mylne and Craig,
l23, 100, 1913; Attorney General VS.. Great North
ern Railway Company, dr. and sm.. l6l !; Kerr
on Injunctions I'd ed.), 1858.
no provision for Il Jury trial in cnses like this
one, it is sufficient to say that such a mode of
trial is not required i'll suits in equity brought
| to enjoin a public nuisance. The statutory Iii
| rection that an injunction issue ut the com
mencement of the action is not to be construed
| dispensing with such preliminary proof MS is
necessary to luy tie foundation tor njunc-
ton pending the suit. The court is not to
issue an injunction simply because one is
asked, or because the charge is made that IL
common nuisance is maintained in violation of
law. The statute leaves the court ut liberty to
give effect to the principle that an injunction
Will not be Srnted to restrain nuisance, eX-
cept upon clear and satisfactory evidence Us
to tho fact. Here the fact to be nscertained
was not whether IL place kept and maintained
.NA
per Sc nuisance TINT fact being concusively
! determined by the statute tself-but whether
the place in question SO kept and m,lill-
| tanned. If the proof upon that point is not full
and satisfactory the court can refuse an in
junction or postpone action until the state first
obtains the verdict OF II inry i'll her favor
ADMITTED THE NUISANCE.
In this case it cnnnot be denied that the de-
PENDANTS kept and maintained IL place that is
within the statute definition Of common nui-
sance. Their petition for the removal of the
cause from the State court and their answer to
the bill admitted every TACT necessary to MAIN
tain this SHIT if the statute under which it Mis-
brought was constitutional. Touching the pro-
vision that in prosecutions, by indictment or
Otherwise, the state need not, the FIRST j,i-
| stnlce, prove that the defendant has the Der
init required by the statute, we observe thut if
1t has any application to proceeding like tlis
1t does not deprive him of the presumption that
he is innocent of any violation OF law 1t is
only declaration that When the State has
| proved thnt the place described is kept aud
maintained for the pHrpose Of the lnnnutnctule
md sale of Intoxicating liquor the prosecu-
tlon need rot prove negative-nunIeiy. that
tho defenflant..has not the required license or
permit. Ii Il defendant la such license or
permit he can easily produce it and thus over
throw the prinIu-fuce case established by the
State.
"A portion of the argument in behalf of the
defendants is to the effect that the statutes OF
Kansas forbid the manufacture OF Intoxicating
liquors to be exported to be carried to orLer
StuteS and uDOu tlnt ground ura repu,,Onnt IN